Burrell v. State ( 1909 )

Whtteield, O. J.,

delivered the opinion of tbe court.

This case is a very peculiar one in some of its aspects. The appellant is a negro, who was about fifteen years of age when he killed the deceased, another negro, who was then about seventeen years of age. There are a number of irregularities-in the case, which are made grounds for assignment of error;but we will notice at this time but one.

The record shows, in the testimony of Judge O'ox, that an agreement was entered into between the counsel for the state and the counsel for the defense, Mr. Sharpe, who is called the leading counsel for the defense, being present and himself making the agreement, that the defendant “wo-uld waive a special venire, with the understanding that they would get ready for trial, if they could, by Thursday morning, but that they were not to be pressed into trial before Thursday afternoon,” and that this announcement was made without objection in the hearing of the court. Mr. Sharpe went off on some other business, leaving Mr. McIntyre, his,partner, as it seems, in charge of the case. On Thursday morning the defendant was forced to trial, and the entire jury was passed upon and impaneled, so-far as the state was concerned, and so far as the exercise of any challenge to jurors for cause was concerned by defendant; all this being done in the forenoon of Thursday, and in the absence of Mr. Sharpe.

There were some very nice questions in the case as to whether or not the juror Hargett, challenged for cause, should not have been excused for cause. The learned assistant attorney-general admits that, perhaps, it would have been better to have done so. But, passing by this assignment as to this juror, it is enough to say that in the record there is sufficient showing that he was prejudiced in his trial, by reason of having been forced into trial, in the absence of Mr. Sharpe, in the forenoon of Thursday, in contravention of the agreement set out. Ilav-ing made this arrangement witb Mr. Sharpe as the basis for the withdrawal of a motion for a special venire, and the trial having been proceeded with without a special venire, the agreement should have been carried out, and the trial not have been proceeded with until Thursday afternoon, especially where the issue was- so grave as the one here, involving a death sentence.

Nor this error, the judgment is reversed, and the cause remanded. Reversed.